SCOTUS Justices take potshots in opinions

WASHINGTON (CNN) -- One Supreme Court justice says his fellow conservatives are "too dismissive" of government efforts to ensure racial diversity in schools. Another more liberal member says those on the right did "serious violence" to a high school student's free speech rights.

And one conservative slams another for "faux judicial restraint."

These were some of the heated written exchanges contained in the final decisions handed down by the high court in the last, frantic days of the term.

With justices rushing to finish business in time for summer recess, the luxury of polite, modest jurisprudence often gives way to bare-knuckle rhetoric, preserving for history the evidence of a divided court.

With the liberal bloc narrowly losing a number of high-profile cases this term -- including late-term abortion, campaign finance reform, and public school desegregation -- the political and legal stakes produced sharper ideological lines.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer all wrote toughly worded dissents, punctuated by reading some of them from the bench. It is a rarely used privilege, reserved for only the biggest, most contentious cases.

"There is very little that dissenters can do. If you don't have five votes you really don't have anything," said Thomas Goldstein, a Washington appellate attorney who has argued many cases before the Supreme Court.

"The one symbolic step that they can take to show they are almost outraged and that they think something terrible has happened is to read these dissents from the bench. And so the fact that the more liberal members of the court have done it is really a sign that they are frustrated."

Stevens in particular enhanced his reputation for wielding a sharp pen, belying his mild-mannered personality.

He slammed the 5-4 conservative majority in a free speech case that concluded a high school student could not sue his principal after he was suspended for unfurling a banner reading "Bong Hits 4 Jesus."

The 87-year-old justice said the First Amendment suffered "serious violence" from the ruling, adding cynically, "It takes real imagination to read a 'cryptic' message (the court's characterization, not mine) with a slanting drug reference as an incitement to drug use."

Justice Clarence Thomas, perhaps the most conservative member of the high court, struck back in a separate concurrence, saying his liberal colleagues' efforts to elevate a student's "impertinence" to a constitutional protection would be "farcical." Some have read Thomas' words as attacking nearly every member of the bench who in varying degrees believed students deserve some limited free speech rights.

The most reliable source over the years for colorful language in rulings has been Justice Antonin Scalia, who once accused fellow conservative Sandra Day O'Connor of "irrational" views that "cannot be taken seriously" in one case.

In two cases this term he took Chief Justice John Roberts to task for what Scalia believed was a lack of legal backbone.

The 70-year-old justice agreed with Roberts' ruling last month that political "issue ads" -- produced by corporations and unions just before elections -- should be allowed. But Scalia wanted to go further and rule unconstitutional nearly all of the McCain-Feingold campaign finance reform bill that had banned the ads.

He said Roberts was trying to have it both ways.

"This faux judicial restraint is judicial obfuscation," Scalia wrote in a concurrence.

And in a case where the conservative majority ruled taxpayers could not sue the executive branch over its spending authority in cases where the White House is accused of supporting religious causes, Scalia again said Justice Samuel Alito's opinion -- supported by Roberts -- did not do enough.

"Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions," he wrote.

But the school race decision, the last issued by the court this year, produced especially harsh words.

Stevens accused Roberts of distorting history when he said the 1954 Brown v. Board of Education decision ending segregation in schools supported a colorblind approach to government and public programs. He called it a "cruel irony" that the chief justice "rewrites one of this court's most important decisions."

Justice Anthony Kennedy was equally passionate.

While saying the two school choice plans -- in Louisville and Seattle -- were unconstitutional, he took his four conservative colleagues to task for embracing "an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account."

He said Roberts, Scalia, Alito and Thomas were "too dismissive" of the compelling interests of a school to achieve diversity using "narrowly tailored" means.

Taking an opposite view, Thomas -- the only African-American justice -- was just as adamant.

"If history has taught us anything, it has taught us to beware of elites bearing racial theories," Thomas wrote.

Legal experts say the new conservative majority of the Roberts court will continue to produce divided rulings, and divisive rhetoric.

"The recent decisions are very significant because we are filling in the blanks about the new Supreme Court majority," said Goldstein. "Now we are understanding what they really think.

"We have moved beyond the honeymoon of the new court membership to the concrete question of how exactly conservative are they and what they think the law should be."